Video Game Preservation and the Law: DMCA Exemptions Explained

Digital Millennium Copyright Act Section 1201 makes it illegal to circumvent copy-protection technology on copyrighted works, even for otherwise legal purposes — a broad default rule that would make basic video game preservation work, like copying an old, out-of-print game past its original copy protection to keep it playable, technically illegal without a specific carved-out exemption. The US Copyright Office reviews and updates the list of these exemptions every three years, in what's formally called the Section 1201 triennial rulemaking, and the most recent 2024 cycle produced a result preservation advocates had been specifically hoping to avoid.

What the Existing Exemption Already Allows

Libraries, archives, and museums already have a standing exemption permitting them to circumvent copy protection specifically to preserve video games that are no longer commercially available — making a legal, non-infringing copy for archival purposes rather than for distribution or ordinary use. The 2024 rulemaking cycle did make one genuine, if narrow, clarification to this existing exemption: it confirmed explicitly that a preservation institution can allow a circumvented copy to be accessed by as many individual users as there are legally-owned physical copies the institution actually holds — meaning if a library owns three physical copies of an out-of-print game, it can let three people access a preserved digital copy simultaneously, matching the "owned copies" logic that governs how libraries have traditionally lent out physical media.

What Preservation Advocates Actually Asked For, and Didn't Get

The considerably more consequential request in the 2024 cycle came from the Video Game History Foundation, working alongside the Software Preservation Network, asking the Copyright Office to expand the existing exemption to allow remote access — letting a researcher access a preserved, out-of-print game over the internet from outside the physical library or archive, rather than requiring them to be physically present at the institution's location to use it. This is a meaningful, practical distinction: under the current exemption as it stands, a researcher who wants to study an out-of-print game preserved at a specific university archive generally needs to travel to that specific physical location to do so, since remote access to the circumvented copy isn't covered.

The Copyright Office's final rule, effective October 28, 2024, declined to expand the exemption to include this remote-access provision. The Video Game History Foundation's public statement following the decision characterized the outcome as a real setback for game preservation and access specifically, given how much of the requested expansion centered on exactly the remote-access capability that was denied.

Why the Copyright Office Keeps Declining This Specific Request

The recurring objection from rights holders opposing broader remote-access exemptions in these proceedings generally centers on a specific fear: that permitting even non-commercial, research-oriented remote access to preserved copies would functionally undermine the market for re-releases, remasters, and legacy re-licensing deals — a genuinely significant and growing part of the modern games industry's revenue, given how often older titles get repackaged and resold rather than left permanently out of print. The Copyright Office's rulemaking process weighs this kind of potential market harm against the preservation and research interest the exemption request is built around, and in the 2024 cycle specifically, that balancing came out against expanding remote access, much as it had in prior triennial cycles when similar requests were made.

What This Means Practically Until the Next Review

The exemptions adopted in the 2024 rulemaking remain in effect for the standard three-year cycle, through October 28, 2027, meaning the current, narrower scope — on-site access at the preserving institution, scaled to the number of legally owned copies, with no remote-access allowance — is the operative legal framework until the next triennial review has a chance to revisit the question. Advocacy groups like the Video Game History Foundation have indicated they intend to continue pressing for the remote-access expansion in future cycles, meaning this specific fight is very likely to resurface again in the 2027 rulemaking rather than being considered settled.

The Practical Reality for Someone Trying to Play an Old Game Today

None of this changes the legal status of ordinary emulation for personal use of games you already legally own, which exists in its own separate, longstanding legal gray area distinct from the institutional preservation exemptions discussed here — this rulemaking cycle is specifically about what libraries, archives, and museums are permitted to do with their own preserved collections, not about an individual's personal use of software they already possess. For anyone relying specifically on institutional archives to access an out-of-print game for research, though, the practical reality after the 2024 cycle remains largely unchanged from before it: you can generally access it if you can get to where it's physically preserved, and current law still doesn't require that access be made available to you remotely.